MNSS BV and Recupero Credito Acciaio NV v. Montenegro

Abstract

Jurisdiction — Consent — ICSID Additional Facility — Contract — Waiver — Whether a waiver must be explicit and entered freely — Whether a waiver must be consistent with the public interest pursued by the parties to the BIT

Jurisdiction — Consent — ICSID Additional Facility — Municipal law — Whether municipal law on foreign investment contained an offer of consent to arbitration

Jurisdiction — Foreign investor — Corporate nationality — Good faith — Whether the BIT excluded claims by shell companies — Whether assuming corporate nationality for the purposes of obtaining treaty protections breached good faith requirements — Whether the claimants obtained protection after the dispute

Jurisdiction — Investment — ICSID Additional Facility — Interpretation — Whether the meaning of investment under the ICSID Convention applied in ICSID Additional Facility arbitration

Jurisdiction — Investment — Loans — ICSID Convention, Article 25 — Salini test – Whether loans qualified as protected investments

Jurisdiction — Investment — Legality — Municipal law — General principle of international law — Whether a legality requirement was implied by the BIT — Whether a legality requirement was a general principle of investment law

Jurisdiction — Domestic litigation requirement — Whether a requirement that domestic remedies be exhausted could be implied into the BIT — Whether a requirement that domestic remedies be exhausted existed as a matter of customary international law

Fair and equitable treatment — Interpretation — Minimum standard of treatment — Breach of contract — Whether the treaty standard of fair and equitable treatment required a lower threshold for breach than the customary minimum standard of treatment — Whether breach of contract may result in State responsibility for breach of fair and equitable treatment

Fair and equitable treatment — Financial institutions — Whether States were under a duty to warn investors of the condition of the financial system or of a specific bank — Whether the State acted reasonably in its regulatory supervision of financial institutions

State responsibility — Attribution — Central bank — Financial institutions — ILC Articles on State Responsibility, Article 8 — Direct control — Whether the conduct of a private financial institution was attributable to the State — Whether the supervision of a private financial institution by a central bank rendered its conduct under the direct control of the State

Fair and equitable treatment — Contract — Whether refusal by a State to reduce the workforce was a breach of contract or a breach of the standard of fair and equitable treatment — Whether a refusal by the State to allow a company to scrap obsolete machinery was a breach of contract or a breach of the standard of fair and equitable treatment — Whether the refusal by the State to approve refinancing proposals was a breach of contract or a breach of the standard of fair and equitable treatment — Whether delays associated with governmental approval of transfers of funds amounted to a breach of contract or a breach of the standard of fair and equitable treatment

Fair and equitable treatment — Labour dispute — Whether the support by the State to a labour union amounted to a breach of the standard of fair and equitable treatment — Whether the State was under an obligation to publicly support a restructuring plan to which it had agreed — Whether the refusal to approve financing proposals was a matter for the State in its capacity as shareholder or in a public capacity — Whether the State failed to maintain a stable legal and business environment

State responsibility — Attribution — Bankruptcy administrator — Whether the conduct of a bankruptcy administrator was attributable to the State

Full protection and security — Interpretation — Whether the standard of most constant protection and security was equivalent to the standard of full protection and security under international law — Whether the provision of no or inadequate police presence breached the standard — Whether claimants proved loss from breach

Most-favoured-nation treatment — Like circumstances — Whether the standard applied to investments only or also to investors — Whether investors in different industries were in like circumstances — Whether investors in like circumstances were treated more favourably

Free transfer — Whether refusal by the State to approve payments constituted a breach of the treaty standard

Expropriation — Indirect expropriation — Whether the conduct constituted a deprivation of the economic use and benefit of the investments

Expropriation — Direct expropriation — Judicial act — Whether transfer of title by a bankruptcy administrator constitutes a direct expropriation — Whether a court decision may constitute a judicial expropriation in the absence of a denial of justice

Costs — ICSID Additional Facility — Whether parties should bear their own costs when the State was successful in some jurisdictional objections and the claimants proved breach but no loss